Is having sex in public a crime? What are you charged with?

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Question:My boyfriend is really into sex in public places, like when we’re hiking in the park or even in the car beside busy roads. I enjoy these “dangerous” encounters but I’m worried that we are risking arrest—are we committing a crime? What crime?

Answer: Get a room. Sorry, hard to resist the snarky response. Seriously, you are possibly committing one or more crimes, depending on the state in which you romp al fresco.

This article discusses laws addressing public sex in general.

Public Sex is a Misdemeanor

In most states, the laws that criminalize public sex make it a misdemeanor crime. Some state laws explicitly criminalize public sexual activity. Other laws are broader and cover a variety of indecent or lewd conduct.

Indecent exposure

Exposure of one’s intimate parts, which usually include genitalia and women’s breasts, is considered indecent exposure and is a misdemeanor crime. Because genitalia or breasts may be exposed during public sex, those caught in the act are often charged with indecent exposure.

However, some couples are adept at having sex while still concealing their nether bits. Even if you are careful to avoid exposure during sex in public, you may still be charged with other crimes.

Lewd act

In many states, the commission of a “lewd act,” including sexual acts, in public is a misdemeanor crime. Lewd acts are typically defined by the standards of the state in which they are enacted. States with laws that criminalize lewd acts often define lewd acts so that it is no defense that the parties were clothed. This covers those who are able to have “discreet public sex.”

Other laws

Minnesota makes fornication (sex between unmarried people) a misdemeanor crime and, presumably, that offense more than covers public fornication. (Minn. Stat.Ann. § 609.34.) Of course, that does not mean married folks can rut in the streets. But, it would provide yet another charge a couple could confront if caught having sex in public in that state.

Adultery (sex between a married person and someone other than his or her spouse) is a crime in 20 states, no doubt honored more in the breach than the observance. This could lead to an additional, embarrassing charge.

Woman Charged With Adultery In New York After Being Caught Having Sex In Public

In 2010, police confronted a couple having sex on a picnic table in a city park in upstate New York. In addition to charging both with public lewdness, the officers also charged the woman, who was married to a man other than her picnic partner, with adultery.

“Public”

While sex on top of a picnic table in a public park is pretty clearly sex in public, what about other situations? Most states have laws that prohibit sex in public restrooms and other public facilities. What about sex in a car, as you inquired? If you are parked on a main street during the day and clearly visible to passers-by, that would qualify as a public setting. But, a New York court has ruled that sex in a car was not sex in a public place unless the act could be readily seen by passers-by. (People v. McNamara, 585 N.E.2nd 788 (1991).) So, it really depends on whether your state views the interior of a car as a public or private space, and what the circumstances are of your “parking.” The more visible you are to the casual observer, the more public you are and the likelier you are to be in violation of your state’s laws.

Defenses to Public Sex

There are a few defenses that a person charged with having sex in public could raise to try to defeat the charges. Here are some of them.

Not public

As to sex in a car, if you are parked in a secluded area at night and not in the pathway of pedestrians who could easily see inside your vehicle, you may be able to argue that you were not “in public.” Again, the success of this defense depends on the laws of the state in which you are charged.

It is unlikely that an argument that sex in a secluded part of a public setting is not public sex. For example, a couple having sex in a public restroom stall with the door closed is more or less out of public view, but most state decency laws prohibit sex in public restrooms, period.

Not sex

Sometimes a steamy tango is just a steamy tango. If your dirty dancing really is just that, you are probably not in violation of the law. However, oral and manual copulation are sex for purposes of laws against public sex, even if no genitalia are visible during the act.

Penalties for Having Sex in Public

Lewd acts, indecent exposure, and such charges are typically misdemeanors and may carry a possible sentence of up to one year in prison and a fine of several hundred to $1,000. The penalty differs from state to state, however.

Consult A Lawyer

A charge of sex in public, while amusing to discuss in the abstract, is a lot less funny when you have to appear in court to answer it. Even though any charge is likely to be a misdemeanor, it is a serious and potentially costly matter. Consult an experienced criminal defense attorney in your state if you have been charged with sex in public or any other crime.